Williams v. Moorehead

• Court: Mississippi Supreme Court
• Writing for the Court: HOLDEN, J.
• Citation: Williams v. Moorehead, 116 Miss. 653, 77 So. 658 (Miss. 1918)
• Decision Date: 11 February 1918
• Docket Number: 19894
• Parties: WILLIAMS ET AL. v. MOOREHEAD ET AL

77 So. 658

116 Miss. 653

WILLIAMS ET AL. v. MOOREHEAD ET AL

No. 19894

Supreme Court of Mississippi

February 11, 1918

Division A

APPEAL from the chancery court of Newton county, HON. G. C. TANN Chancellor.

Bill by Leona Moorehead and others against John Williams and others. From a verdict for complainant, defendants appeal.

The facts are fully stated in the opinion of the court.

Decree reversed, and cause remanded.

Byrd &amp Byrd, for appellants.

Wilson & Johnson and J. B. Hillman, for appellees.

OPINION

HOLDEN, J.

This cause was commenced in the chancery court of Newton county and is a controversy over, and contest of, the validity of the probated will of John D. Williams, deceased. John D. Williams executed a will of date November 27, 1914, bequeathing all his property to the appellants, who were his younger children. The testator died January 16, 1916, and his said will was duly filed for probate, and was admitted to probate by the chancery clerk in vacation. Following the probate of this will in common form, the appellees, who were the older children of the deceased, and who did not take under this will of the testator, filed a bill, contesting the validity of the said probated will, alleging and claiming that the said will was expressly revoked by a subsequent will of the deceased made in December, 1915, in which the appellees were made legatees along with the other children of the deceased. The issue of devisavit vel non was made up between the proponents and the contestants, and testimony was submitted by proponents establishing the validity of the probated will; and oral testimony was submitted by the contestants tending to establish the subsequent will, which contained an express revocation of the former testament. The oral testimony of contestants went to show that the subsequent will was seen by several witnesses before the death of the testator, but that after his death the will could not be found, and secondary proof of its contents by oral testimony was allowed by the court. There appearing to be a conflict in the evidence, the issue was submitted to the jury, who found a verdict in favor of the contestants. From this finding of the lower court the proponents appeal here.

The appellants assign several errors of the trial court, one of which, at least, we think is well grounded; and as several of the other questions presented may never arise again, we shall discuss only two of the assignments, which will reverse the decree of the lower court and grant a new trial of the case.

First. It is contended that it was error to grant the following instruction, No. 3, to the contestants in the lower court:

"The court charges the jury at the request of contestants, that if the whole evidence in the case leaves it doubtful whether the will probated and now being contested was the true last will of John D. Williams, the jury should find against its validity; for it is incumbent upon the proponents of the said will by a preponderance of the evidence to reasonably satisfy the minds of the jury that the instrument was in truth the last will of deceased. (Given.)"

This instruction, in effect, not only imposes the burden of proof on the proponents to legally establish the will probated by proponents, but goes further and requires the proponents to affirmatively show, by a preponderance of the evidence to the satisfaction of the minds of the jury, that the alleged subsequent revoking will set up by oral testimony by contestants, was not regularly and legally executed by the deceased. It also instructs the jury "that if the whole evidence in the case leaves it doubtful" as to whether the probated will was the true last will of deceased, they should find for contestants. This instruction was erroneous because the burden of proof was not upon the proponents to disprove the validity of the subsequent will, but it was upon the contestants to show affirmatively that the alleged subsequent will sought to be proven orally by contestants was legally and validly executed in all respects as required by law; and unless this burden was met by contestants, the former valid, probated will was not revoked, but should prevail as the last will and testament of deceased.

We may make it clearer by directing attention to the fact that the will, probated first in common form and then in solemn form by the proponents, was regular in all respects and was legally and validly established, as required by our statutes; and the jury were so instructed by the lower court in the following instruction:

"The court instructs the jury that the will of John D. Williams, deceased, now being contested, is a good and valid will. (Given.)"

Therefore, it seems clear to us that after the will was duly and legally established in solemn form by the proponents, and the court having recognized its validity after hearing all of the evidence submitted by proponents to establish it, the burden then rested upon the contestants to overcome this perfect will, legally probated and established, by showing affirmatively by a preponderance of the evidence that it was revoked by a subsequent will legally executed and attested in the same manner required of the former will. 1 Jarman on Wills (3d Am. Ed.), p. 186, note; 40 Cyc. 1177; 30 Am. & Eng. Enc. Law (2d Ed.), 625; Wilbourn v. Shell, 59 Miss. 205, 42 Am. Rep. 363; Hairston v. Hairston, 30 Miss. 276; Sewall v. Robbins, 139 Mass. 164, 29 N.E. 650; sections 5078, 5079, Code of 1906; sections 3366, 3367, Hemingway's Code.

The serious error in this instruction No. 3 becomes more apparent when we consider the oral proof in this record offered by contestants to establish the due execution and legal validity...